Cold Seas Pty Ltd and United Imports and Exports Company Pty Ltd T/A Bidfood Canberra

[2020] FWCA 5514

[2020] FWCA 5514

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Cold Seas Pty Ltd and United Imports and Exports Company Pty Ltd T/A Bidfood Canberra
(AG2020/1725)

BIDFOOD CANBERRA - ENTERPRISE AGREEMENT 2017

Australian Capital Territory
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 16 OCTOBER 2020

Application for variation of the Bidfood Canberra - Enterprise Agreement 2017.

[1] An application has been made for approval of a variation to the Bidfood Canberra – Enterprise Agreement 2017 (Agreement). The application was made by Cold Seas Pty Ltd and United Imports and Exports Company Pty Ltd T/A Bidfood Canberra (Employer) pursuant to s.210 of the Fair Work Act 2009 (Cth) (Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[5] The application was not lodged within 14 days after the variation was made. Pursuant to s.210(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[6] I note that clause 5.7.3 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). This clause provides that an employee will only be paid for public holidays if the employee is ready, willing and able to work if required in accordance with the Employer’s contractual obligations. However, noting clause 1.3.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[8] In accordance with s.216 of the Act, the variation operates from 16 October 2020.

DEPUTY PRESIDENT

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